McBeth v. J.J.H., 10468

• Decision Date: 13 January 1984
• Docket Number: No. 10468,10468
• Citation: 343 N.W.2d 355
• Parties: Ronald W. McBETH, Richland County Assistant State's Attorney, Petitioner and Appellee, v. J.J.H., a child, and Simone Sandberg, Guardian ad Litem of said child, Respondents and Appellees, J.H., parent of said child, Respondent, and L.H., parent of said child, Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 355

343 N.W.2d 355

Ronald W. McBETH, Richland County Assistant State's Attorney, Petitioner and Appellee, v. J.J.H., a child, and Simone Sandberg, Guardian ad Litem of said child, Respondents and Appellees J.H., parent of said child, Respondent and L.H., parent of said child, Respondent and Appellant.

Civ. No. 10468.

Supreme Court of North Dakota.

Jan. 13, 1984.

Earle R. Myers, Jr., State's Atty., Wahpeton, for petitioner and appellee.

Simone Sandberg, Wahpeton, guardian ad litem.

Don R. Krassin, Krassin Law Office, Wahpeton, for respondent and appellant.

VANDE WALLE, Justice.

L.H., the mother of J.J.H., appealed from the final order of the juvenile court of Richland County which terminated her and her husband's parental rights. We affirm.

On June 15, 1982, J.J.H. ("Jenny") was born. At the time of her birth her parents, L.H. ("Lisa") and J.H. ("James") were married. (The names are pseudonyms.) After living with her parents for three weeks, Jenny was placed in foster care on July 9, 1982.

On October 20, 1982, there was a hearing to determine if Jenny was a deprived child. The trial court found Jenny to be a deprived child and, after stipulation of the parties, the trial court ordered that custody of Jenny be placed with the Richland County Social Service Board, with the recommendation that the paternal grandparents provide foster care for Jenny. The court stated that within six months Lisa and James must present to the court a plan for the long-term care of Lisa. The grandparents agreed to be foster parents. While driving to their home, the grandparents changed their minds and within hours returned Jenny to the Richland County Social Service Board.

Richland County Social Service Board subsequently filed a petition seeking the termination of the parental rights of Lisa and James. At the time of the termination hearing, Lisa was 17 years of age and James, who attended the North Dakota State School of Science, was 20 years of age. After hearing testimony on April 11 and 12, 1983, the trial court granted the petition. Only Lisa appealed.

On appeal Lisa raises two issues. She contends that the determination of her parental rights should be based solely upon the evidence presented at the April 11 and 12 hearing. She also argues that there is insufficient evidence to support the termination of her parental rights.

I

Lisa maintains that the determination of her parental rights must be based upon only the record produced at the April termination hearing and not on the October deprivation hearing. At the April termination hearing the witnesses included those who testified at the October deprivation hearing. These witnesses testified to the same events they testified to at the October hearing. Lisa argues, however, that the determination of her parental rights must not be based upon admissions she made at the October deprivation hearing.

The issue of whether or not a court should consider testimony in proceedings prior to the hearing for termination merits only a brief comment because we believe that the record established at the termination hearing is itself sufficient to support the trial court's decision to terminate Lisa's parental rights. In In Interest of R.H. 262 N.W.2d 719, 722 (N.D.1978), we stated that "[t]estimony admitted during a separate proceeding, where the termination of parental rights was not at issue, should not be judicially noticed, over objection, in a proceeding where a termination of parental rights is sought." In that case one of the parties requested that the trial court take judicial notice of proceedings conducted prior to the termination proceeding; on appeal there was no transcript of the testimony from which the trial court may have taken judicial notice.

Although we recognize that due process prohibits a court from taking judicial notice of testimony of proceedings prior to the termination of parental rights if the parents did not receive the notice required for termination, "we do not believe [that] the juvenile court need operate in a vacuum concerning the results of the previous proceedings ..." In Interest of M.R., 334 N.W.2d 848, 853 (N.D.1983). [Emphasis supplied.] At a termination hearing a trial court necessarily considers prior proceedings and the events that followed when determining if the conditions and causes of the deprivation are likely to continue or will not be remedied, one of the elements to be established in terminating parental rights. See Sec. 27-20-44(1)(b), N.D.C.C. See, generally, In Interest of J.A., 283 N.W.2d 83 (N.D.1979). And on appeal this court considers the evidence produced at the termination hearing, which naturally includes the history of the family. See In Interest of L.N., 319 N.W.2d 801 (N.D.1982).

In the present case, the trial court at the termination hearing listened to the witnesses testify to the same events they testified to at the deprivation hearing, except that at the termination hearing Lisa did not make the admissions she made at the deprivation hearing. If we assume the trial court considered prior proceedings, it could properly do so under these circumstances with the exception of the admissions Lisa made at the deprivation hearing. As we discuss in the next portion of this opinion, there is ample evidence without Lisa's admissions to support the findings of the trial court.

II

Lisa also contends that there was insufficient evidence to support the termination of her parental rights. In reviewing the evidence presented to the trial court we are not restricted by the standards of Rule 52(a), N.D.R.Civ.P. The Uniform Juvenile Court Act provides that our review of the files, records, and minutes or transcript of the evidence of the juvenile court is similar to the former procedure of a trial de novo. Sec. 27-20-56(1), N.D.C.C. We give the juvenile court's findings appreciable weight, but we are not bound by them. Asendorf v. M.S.S., 342 N.W.2d 203 (N.D.1983); Kleingartner v. D.P.A.B., 310 N.W.2d 575 (N.D.1981). We nevertheless recognize that the trial court had the opportunity to observe the demeanor of the witnesses. In Interest of D.S., 325 N.W.2d 654 (N.D.1982).

Before a court may terminate parental rights, it must find that the State has established by clear and convincing evidence three factors: that the child is a "deprived child"; that the conditions and causes of the deprivation are likely to continue and will not be remedied; and that by reason of the continuous or irremedial conditions and causes, the child is suffering or probably will suffer serious physical mental, moral, or emotional harm. See Asendorf v. M.S.S., supra; Sec. 27-20-44(1)(b), N.D.C.C. Although parents have a fundamental right to their child which is of constitutional dimension [Kleingartner v. D.P.A.B., supra ], parental rights will "not be enforced to the detriment or destruction of the happiness and well-being of the child." In Interest of F.H., 283 N.W.2d 202 (N.D.1979).

Section 27-20-02(5), N.D.C.C., provides, in part, that a child is deprived if he

"a. Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of his parents, guardian, or other custodian; ..."

Although the trial court stated at the October hearing that Jenny was a deprived child, the determination is not res judicata for the purpose of establishing deprivation at the termination hearing. In Interest of R.H., supra. The testimony of various witnesses who testified at the termination hearing, however, reveals that Jenny is a deprived child.

At the trial social workers and the foster mother testified that Lisa did not properly care for Jenny. Lisa told a social worker that she wanted to place Jenny in foster care while she went camping for the weekend because she was afraid that she might hurt her and because she did not want to be left alone at home. During the camping trip Lisa and James did not discuss if they would try to care for Jenny.

Lisa's lack of proper care for Jenny was also manifested by the problems related to visitations, which were well documented at trial. Lisa first visited Jenny at the foster mother's house. The foster mother testified that she believed that Lisa stopped by to visit her rather than Jenny. When Lisa visited, she did not want to hold or feed Jenny. The social workers then changed the plan for visitation by arranging that Lisa could care for Jenny in her own home.

Lisa infrequently exercised her right to care for Jenny during the day. When she did decide to care for Jenny in her home, Lisa sometimes would admit to social workers that she did not have bottles, diapers, or formula for Jenny. The social workers then would not let Lisa take her home. Lisa's lack of interest in obtaining a crib for Jenny also reduced the opportunities for Jenny to stay overnight. Jenny spent only two weekends with Lisa and James. On both occasions James refused to sleep at home the first night that Jenny was there. The foster mother testified that Lisa had difficulty in remembering what food she should give Jenny and Jenny's sleeping schedule. The foster mother also testified that occasionally Jenny would return hungry and wearing the same diaper she had on before going to Lisa's home.

Social workers...